Suhana.T.T vs The Mukkom Service Co-Operative ...
2021 Latest Caselaw 18280 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE AMIT RAWAL
     TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
                         WP(C) NO. 18074 OF 2021
PETITIONER/S:

     1     SUHANA.T.T
           D/O SULAIMAN T.T.THAYYIL THODUKAYIL HOUSE, NEELESWARAM
           P.O.OMASSERY, KOZHIKODE

     2     DEEPAK LAL,
           S/O PADMANABHAN NAIR, KODINGOTH HOUSE, CHATHAMANGALAM
           P.O.N.I.T.KOZIKODE

           BY ADVS.
           P.P.JACOB
           MARIYAM JACOB
           MARIYA TITTY


RESPONDENT/S:

     1     THE MUKKOM SERVICE CO-OPERATIVE BNK LTD.NO.F 1241
           MANASSERY, MUKKOM, KOZHIKODE-673 602, REPRESENTED BY ITS
           SECRETARY

     2     THE ADMINISTRATIVE COMMITTEE,
           MUKKOM SERVICE CO-OPERATIVE BANK LTD NO. F 1241, MUKKOM,
           KOZHIKODE-673 602, REPRESENTED BY ITS CONVENER.

     3     THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES(G),
           KOZHIKODE, OFFICE OF THE JOINT REGISTRAR OF CO-OPERATIVE
           SOCIETIES, PUTHIYARA, KOZHIKODE-673 004.


OTHER PRESENT:

           GP SRI JIMMY GEORGE, SRI M SASINDRAN SC


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 18074 OF 2021
                                        2



                            JUDGMENT

Petitioners, 2 (two) in number, are the employees, after

conducting the selection process, were appointed in the

Mukkom Service Co-operative Bank Ltd, as peon. .

Respondent Society is registered under the Kerala Co-

operative Societies Act. Notification was issued on 12.8.2013

to fill up the posts of two attender, one salesman, three peons

and one night watchman. Petitioners submitted the

applications

2. One Roy Joseph filed a representation, dated

5.11.2013 , before the Joint Registrar stating that the said

appointment was illegal. The Joint Registrar issued an order

dated 3.7.2014 to the effect that the appointment effected was

regular and no irregularity existed. W.P.(C) No.29093/2013

was filed by two persons alleging that they are working as

peons in the bank appointed pursuant to the selection process

and they are entitled to continue in the bank. Another writ

petition W.P.(C) No.20518/2014 was filed by one member of WP(C) NO. 18074 OF 2021

the bank challenging the appointment of additional vacancy in

the bank in excess of the vacancies notified to be arbitrary and

illegal. The first writ petition was dismissed, whereas, the

second writ petition was disposed of by setting aside the

proceedings of the Joint Registrar dated 3.7.2014 on the

ground that the appointment made in excess of two notified

vacancy of peon in the notification was legally unsustainable

and were to be filled up by the bank after issuing fresh

notification. Writ Appeal was filed which was also dismissed.

A notification dated 18.4.2018 was published in the leading

newspaper inviting application to fill up one post of typist, one

post of salesman, one post of attender, two posts of peon and

two posts of night watchman. The aforementioned notification

was challenged by one Sreejith.A in W.P.(C) No.29090/2013

referred above by filing W.P.(C) No.14892/2018 which was

dismissed as infructuous.

3. While selection process pursuant to the notification

dated 18.4.2018 was underway, the petitioner in W.P.(C) WP(C) NO. 18074 OF 2021

No.14892/2018 ie., Sreejith A. filed another writ petition W.P.

(C) No.10284/2019 for issuance of directions to the bank not to

proceed with the selection process and for getting opportunity

to apply for the said post. Another writ petition W.P.(C)

No.978/2019 was also filed by another candidate seeking

similar relief. Both the writ petitions were heard together

and disposed as per judgment dated 2.4.2019, whereby this

Court had directed the bank to notify the selection to the new

three vacancies in the post of peon/attenders within a period

of two weeks giving full liberty to the petitioners therein to

apply and participate in the selection process. But the Court

did not consider the validity of the process of selection

pursuant to the said notification dated 18.4.2018 impugned in

the writ petition.

4. On the basis of the judgment, bank caused a

notification dated 10.4.2019 inviting application to fill up the

post of peon. The petitioners in W.P.(C) No.14424/2019

alleged that they did not get hall tickets to the written test. WP(C) NO. 18074 OF 2021

Hall ticket was issued to all the candidates including those two

persons simultaneously and writ petition was closed on

29.5.2019, Ext.P5. There was spate of litigation as evidenced

from Exts.P6, P6(a) and P7 and in the interregnum the term of

the committee was over. Administrative committee assumed

office pursuant to the election held on 11.11.2018. The order

of appointment of Administrative committee has also

challenged before this Court. Administrative committee

decided to terminate the service of the petitioners appointed

as peon. Ext.P10 order though was based upon the decision in

resolution No.VI of 24.8.2021 to remove the petitioners from

service, which as per submission has not been done in

accordance with law even no opportunity has been given.

5. This Court on the last date of hearing on 6.9.2021

passed the following order:

Learned counsel for the petitioner Sri.P.P.Jacob expressed remorse that the prayer in the writ petition is for quashing of Exts.P10 and P9 which is inadvertently mentioned in the cover of the paper book and the prayer is with regard to quashing of Ext.P10. Request is accepted. The writ petition shall be construed to be seeking the prayer of quashing of Ext.P10. Learned counsel for the petitioner alleges that before passing the order Ext.P10 dated WP(C) NO. 18074 OF 2021

25.08.2021 principles of natural justice had not been complied with.

Sri.S.Shyam kumar for the Bank Society raised the objection qua maintainability of the writ petition in view of the non-availment of efficacious remedy but seeks a day's time to enable him to obtain instructions with regard to the compliance of the principles of natural justice as the parameters for invoking the judicial review under Article 226 of the Constitution of India in the absence of noncompliance is well known.

6. Learned counsel appearing on behalf of the Bank

submitted that before passing the order Ext.P10 no

opportunity was given but the fact remains the order had to be

passed on the basis of the order of the Registrar, which was

based upon the order of this Court in other writ petition. In

support of the contention, relied upon the Division Bench

judgment of this Court in Purushothaman v. Registrar

(1996 KHC 261) where the plea of non compliance of the

principle of natural justice was negated, as it was found that

the appointment was through backdoor methods. Petitioners

have also been appointed through backdoor, therefore, the

ratio decidendi culled out in the judgment is directly

applicable to the facts and circumstances of this case.

7. I have heard the learned counsel for the parties and WP(C) NO. 18074 OF 2021

appraised the paper book. The relevant portion of the order

Ext.P10 dated 25.8.2021 reads as under:

It is informed that the appointment effected by the erstwhile committee of the bank is seen in violation of the orders of the Hon'ble Court and Hon'ble Registrar. The administrative committee took resolution No.6 dated 24.8.21 to remove you from service forthwith as the appointment is irregular. It is also decided to give wages on daily basis for the period you have worked.

8. It is based upon the resolution No.VI dated

24.8.2021 which was never enclosed to the petitioners to

ascertain what weighed in the mind of the department to

terminate the service of the petitioners, by holding

appointment as irregular. Had they been supplied the copy of

the resolution or given an opportunity of hearing would have

assailed the order under the Co-operative Societies Act by

going to the Arbitration court but have chosen to come to this

Court. It is not yet clear whether the appointment of the

petitioners is through backdoor method. All these matters are

required to be looked into by the Society or the Registrar of

the Society by providing opportunity of hearing. Accordingly,

the Ext.P10 dated 25.8.2021 is hereby quashed. However, WP(C) NO. 18074 OF 2021

this will not entail the Co-operative Society to comply with the

resolution No.VI of 24.8.2021 but the same has to be done by

giving advance notice to the petitioners and supply the

materials, in accordance with law.

With the aforementioned observation, writ petition is

allowed.

Sd/-

sab                                      AMIT RAWAL

                                           JUDGE
 WP(C) NO. 18074 OF 2021


                  APPENDIX OF WP(C) 18074/2021
PETITIONER EXHIBITS

Exhibit P1            TRUE PHOTOCOPY OF THE ORDER DATED 5.11.2013

VIDE NO CRP 5781/13/L.DIS ISSUED TO THE THIRD RESPONDENT WITH ENGLISH TRANSLATION

Exhibit P2 TRUE PHOTOCOPY OF THE JUDGMENT IN WPC 14892/2018 IN 978/2019 DATED 8.10.2018

Exhibit P3 TRUE PHOTOCOPY OF THE JUDGMENT IN WPC 978/2019 DATED 2.4.2019

Exhibit P4 TRUE PHOTOCOPY OF THE NOTIFICATION DATED 10.4.2019 PUBLISHED IN MALAYALA MANORAMA DAILY WITH ENGLISH TRANSLATION

Exhibit P5 TRUE PHOTOCOPY OF THE JUDGMENT IN WPC 14424/19 DATED 29.5.2019

Exhibit P6 TRUE PHOTOCOPY OF THE INTERIM ORDER IN JUDGMENT IN WPC 22066/2019 DATED 13.8.2019 WITH TYPED COPY

Exhibit P7 TRUE PHOTOCOPY OF THE INTERIM ORDER IN JUDGMENT IN WPC 29977/2019 DATED 7.11.2019 WITH TYPED COPY

Exhibit P8 TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE PRESIDENT OF THE SOCIETY DATED 29.5.2020 WITH ENGLISH TRANSLATION

Exhibit P9 TRUE PHOTOCOPY OF THE ORDER DATED 5.8.21 ISSUED BY THE THIRD RESPONDENT WITH ENGLISH TRANSLATION

Exhibit P10 TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT COMMITTEE DATED 25.8.21 WITH ENGLISH TRANSLATION